With the federal government's growing assertion of power over the states -- Obamacare is just the highest-profile example -- state legislators regularly contact me for advice on how to push back while remaining constitutionally faithful. What can they do in areas like health care, immigration, drug decriminalization, and firearm regulation?
One innovative solution is interstate compacts: states can actually create binding federal law by joining together in a sort of multi-state contract. Typically they need Congress's (but not the president's) consent, but the Supreme Court has held that when the compacts don't implicate challenges to federal power, they don't even need that.
For example, Texas is now considering joining a Medicaid/Medicare compact established by Georgia and Oklahoma. Many states are considering a Health Care Freedom Act compact, which use preexisting congressional consent for criminal-justice-cooperation compacts to mutually enforce state laws prohibiting the forced purchase of health insurance.
I discussed these innovative policy solutions -- on which the law is untested -- in a recent podcast. More broadly, however, there are plenty of things states (and of course their citizens!) ought to be considering if they want to reestablish the dual -- actually tripartite, adding individuals -- sovereignty at the heart of Constitution's structural protections of liberty. (For more on that point, see part IV of Cato's most recent Obamacare brief and part III of Justice Kennedy's opinion in Bond v. United States.)
To that end, our friends at the Goldwater Institute recently released a major new report called “Federalism-Do-It-Yourself: 10 Ways for States to Check and Balance Washington.” The report outlines 10 legal tools that states can use to stand up to federal overreach, without resorting to so-called nullification (states can't simply declare federal law void). The report includes a number of examples of how these tools have been used in isolated cases and recommends that states embrace them in a clear strategy to start holding the federal government to its constitutional role. From Goldwater's press release, some of the tools include:
Reinvigorate the Reserved Powers of the States
Remember the REAL ID Act, the federal government’s attempt to create a national identification card through state driver’s licenses? REAL ID never was carried out because 14 states refused to comply. The Supreme Court has ruled the 10th Amendment prevents the federal government from “commandeering” or forcing state officials to implement federal policies. In “Federalism DIY,” author Nick Dranias writes there are many other areas where the federal government has fooled states into helping to carry out federal mandates when they don’t have to.
Strategic Legislation Plus Litigation
The U.S. Supreme Court has recognized that states can grant more freedom and civil rights to their residents than what’s protected in the Constitution. And states can use this power to thwart federal efforts to impose new mandates on people. For example, 28 states are challenging President Obama’s health care law in two lawsuits out of Virginia and Florida. Both lawsuits won the first round before U.S. district judges and now are on appeal. Both judges ruled the states could challenge the federal law only because many states have adopted the Health Care Freedom Act, which protects a person’s right to choose his own doctors and not buy government-controlled health insurance. To date, no lawsuit against Obamacare without a state government as a plaintiff has a single victory.
Coordination with Local Governments
Laws creating many federal agencies, such as the Bureau of Land Management, include a standard but little-known provision requiring these agencies to “coordinate” proposed new rules with local governments. This means the agency must sit down with a local government and honestly attempt to craft a rule that doesn’t conflict with existing local policies. If the federal agency fails to do so, a court can block the new rule. Three counties in Utah used the right to coordination to stop the BLM from releasing diseased wild horses onto public ranch lands.
There's a lot of good stuff in there, so kudos to Nick Dranias and Goldwater for creating this federalism toolkit.